1

Response to Comments for the Federal Register Notice for Air Quality State Implementation Plans; Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO 2, 2010 SO 2 , and 2012

PM 2.5 National Ambient Air Quality Standards; Utah

Docket No. EPA

- R08

- OAR

- 2013

- 0561

July 19 , 20162 Public Comments

Note: This response

- to

- comment (RTC) document contains EPA’s responses to comments received by the close of the public comment period for thi s action, May 26, 2016. EPA has paraphrased the comments.

Sierra Club Comments on EPA Approval of Utah iSIP Pertaining to SO 2 Document No. EPA

- R08

- OAR

- 2013

- 0561

- 0023

Comment 1: National Ambient Air Quality Standards and Implementation of the NAAQs

The Sierra Club (here in after referred to as “ Commenter ” ) states that the main objective of

the infrastructure SIP process “ is to ensure that all areas of the country meet the NAAQS ” and

that nonattainment areas are addressed through “ nonattainment SIPs. ” The Commenter asserts the NAAQS “ are the foundation upon which air emission standards for the entire country are set ” including specific emission limitations for most large stationary sources, such as coal

- fired power plants. The Commenter discusses the CAA’s framework whereby states have primary responsibility to assure air quality within the state pursuant to CAA section 107(a)

. S tates carry

out section 107(a) through SIPs such as infrastructure SIPs required by section 110(a)(2). The Commenter points to air monitoring and modeling requirements of infrastructure SIPs and cites
to the EPA’s D ata R equirements R ule for determining the SO 2 NAAQS compliance status (80

FR 51052 ( Aug. 21, 2015 ) ).

The Commenter also states that the plain language of the CAA requires infrastructure

SIPs “ to be adequate to prevent exceedances of the NAAQS. ” In support, the Commenter quotes language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS . The Commenter also quotes language in section 110(a)(2)(A) requiring SIPs to include enforceable emissions limitations as may be necessary to

meet the requirements of the CAA

, which the C ommenter claims includes attainment and maintenance of the NAAQS. The Commenter contends that EPA interpretations in rulemakings require the inclusion of enforceable emission limits in infrastructure SIPs when new or revised NAAQS are promulgated . The Commenter also contends that infrastructure SIPs must address interstate transport of pollution and quotes language from section 110(a)(2)(D)(i)(I).

Response 1 : The EPA disagrees that section 110 is clea r “on its face” and must be interpreted in

t he manner suggested by the Commenter. As we have previously explained in response to similar

comments the Commenter has made on EPA’s action s approving other states’ infrastructure SIPs, section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that

structure. 1

1 See 80 FR 46494 (Aug. 5, 2015) (approval of Pennsylvania ozone and SO 2 infrastructure SIP); 80 FR 11557 (Mar. 4, 2015) (approval of Virginia SO 2 infrastructure SIP); 79 FR 62022 (Oct. 16, 2014) (approval of West Virginia SO 2 infrastructure SIP); 79 FR 19001 (April 7, 2014) (approval of West Virginia ozone infrastructure SIP); and 79 FR 17043 (Mar. 27, 2014) (approval of Virginia ozone infrastructu re SIP).3

The EPA interprets infrastructure SIP s as more general planning SIPs, consistent with the CAA as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and t he EPA to label areas as attainment or

nonattainment. R ather, s tates were required to include all areas of the state in ‘‘air quality control regions’’ (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with a new NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for ‘‘attainment’’ of the NAAQS and

section 110(a)(2)(B) specified that the plan must include ‘‘emission limitations, schedules, and

timetables for compliance with such limitations, and such other measures as may be necessary to
insure attainment a nd maintenance [of the NAAQS].’’ In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and the EPA to identify whether areas of a state were violating the NAAQS ( i.e.,

in nonattainment) or were meeting the NAAQS ( i.e., in attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas

still had air quality not meeting the NAAQS and Congress again amended the CAA and added
yet another layer of more prescriptive planning requirements for each of the NAAQS. At that time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre

- existing section110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause ‘‘as may be necessary to insure attainment and maintenance [of the NAA QS]’’ with ‘‘as may be necessary or appropriate to meet the applicable requirements of this chapter.’’ Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 of the CAA did provide t he only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping

- stone in the planning process for a specific NAAQS. More detailed, later

- enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS. Thus, the EPA believes that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of that structure and the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later promulgated and more specific planning requirements of the CAA, the EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for ‘‘implementation, maintenance and enforcement’’ to mean that the SIP must contain enforceable

em ission limits that will aid in attaining and/or maintaining the NAAQS and that the state

demonstrates it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. The EPA has interpreted the requ irement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Furthermore, as the EPA stated in the Infrastruc ture SIP Guidance 2 which specifically provides

2 See Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2) , Stephen D. Page, Director, EPA’s Office of Air Quality Planning and Standards, to Regional Air Division Directors4

guidance to states in addressing the 2008 ozone and 2010 SO 2 NAAQS, ‘‘[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency’s SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary pr ovisions, by making a substantive SIP revision to update the SIP, or both.’’ In frastructure SIP Guidance at p. 2. 3 The Commenter makes general allegations that Utah does not have sufficient protective

measures to prevent SO 2 NAAQS exceedances. The EPA addr essed the adequacy of Utah’s

infrastructure SIP for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in the proposed rulemaking ( 80 FR 24527, April 26, 2016 ) and explained why the SIP includes

enforceable emission limitations and other control measures neces sary for maintenance of the

2010 SO 2 NAAQS throughout the State. Finally, the EPA addresses the Commenter’s statement that a state must demonstrate the “Good Neighbor” requirements of section 110(a)(2)(D)(i)(I) to protect the NAAQS of neighboring states in Response 15.

Comment 2 : The 2010 Sulfur Dioxide NAAQS The Commenter provides a history of the establishment of the SO 2 NAAQS and discusses the adverse health impacts of SO 2 exposure. The Commenter asserts that modeling is the appropriate tool for implementation of the 2010 SO 2 NAAQS. The Commenter cites to several cases upholding EPA’s use of modeling in NAAQS implementation actions, including

the Montana Sulphur case, Sierra Club v. Costle

, 657 F.2d 298 (D.C. Cir. 1981), Republic Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County v. EPA, 571 F.3d 20 ( D.C. Cir. 2009). 4 The Commenter cites to prior EPA statements in the 2010 SO 2 NAAQS preamble

and EPA’s 2012 Draft W hite Paper for Discussion on Implementing the 2010 SO 2 NAAQS, as support that modeling could better address the source

- specific impacts of SO 2 emissions and the historic challenges of monitoring SO 2 emissions. 5

Response 2 : The EPA agrees with the Commenter that air dispersion modeling can be an important tool in the CAA section 107 designations process for SO 2 and in developing SIPs for nonattainment areas as required by sections 172 and 191

– 192, including providing support for required attainment demonstrations. The EPA agrees that prior EPA statements, EPA guidance, and case law support the use of air dispersion modeling in the SO 2 designations and attainment demonstration process es , the interstate impact of transported emissions

, and whether exis ting approved SIPs remain adequate to show attainment and maintenance of the SO 2 NAAQS. Moreover, while the EPA supports the use of modeling as a tool in such contexts

, the EPA notes that under the Data Requirements Rule, states still have the option of ch oosing between

Regio ns 1

– 10, (Sept. 13, 2013) (hereinafter “Infrastructure SIP Guidance”), available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sep t_2013.pdf.

3 Thus, the EPA disagrees with the Comme nter’s general assertion that the main objective of infrastructure SIPs is to ensure all areas of the country meet the NAAQS, as the infrastructure SIP process is the opportunity to review the structural requirements of a state’s air program. While the NAA QS can be a foundation upon which emission limitations are set, as explained in responses to subsequent comments, these emission limitations are generally set in the attainment planning process envisioned by part D of title I of the CAA, including, but not limited to, CAA sections 172, 181

– 182, and 191

– 192.

4 Montana Sulphur & Chem. Co. v. EPA

, 666 F.3d 1174 (9th Cir . 2012).

5 The Commenter also cites to the 2012 Montana Sulphur & Chem. Co. case which upheld EPA’s finding that the previously approved SIP for an area in Montana was substantially inadequate to attain the NAAQS due to modeled violations of the NAAQS; the U.S. EPA, Final Response to Petition From New Jersey Regarding SO 2 Emissions From the Portland Generating Station; and the Data Requirements Rule for the 1

- Hour SO 2 Primary NAAQS (80 FR 51052 (Aug. 21, 2015)); 76 FR 69052 (Nov. 7, 2011) (using modeling to set emission limits sufficient to prevent air pollution).5

modeling and monitoring to characterize air quality. Thus

, the EPA reiterates that while

infrastructure SIPs must provide the state’s authority to conduct air quality monitoring and modeling, they need not provide specific air dispersion modeling for large stationary sources of pollutants as the Commenter suggests. Specific air dispersion modeling for large stationary sources are helpful support as part of the d esignations and attainment demon stration process, but are outside the scope of this action.

Comment 3 : Utah’s SO 2 NAAQS Infrastructure SIP is Inadequate with Respect to the Air Monitoring and Modeling Requirements of Sections 110(a)(2)(K) and 110(a)(2)(B).

The Commenter references the Data Requirements Rule for the 2010 1

- Hour Sulfur Dioxide (SO 2 ) Primary NAAQS (80 FR 51052 (Aug. 21, 2015) )

, which requires states to

characterize SO 2 air qua lity either by air quality monitoring or modeling data. According to the Commenter, the Data Requirements Rule requires Utah to notify the EPA whether it will use air quality modeling or monitoring to characterize SO 2 air quality associated with sources that have

SO 2 emissions exceeding a 2,000 tons per year annual threshold . The Commenter states that the

EPA should evaluate and determine that the Utah Division of Air Quality’s (U D AQ) modeling and monitoring procedures are in adequate to ensure implementation of CAA programs to attain

and maintain the 1

- hour SO 2 NAAQS. The Commenter obtained air modeling conducted by the UDAQ which was used to determine SO 2 concentrations around the Hunter, Huntington, and

Intermountain Power Plants . The Commenter asserts that UDAQ may be relying on modeling analyses to demonstr ate that the area around these power plants are attaining the 1

- hour SO 2 NAAQS rather than for the purpose of informing SO 2 ambient air monitor placement

. The Commenter contends that independent analys e s of the Hunter and Huntington Power Plant’s impacts on 1

- hour average SO 2 concentrations in the area through third

- party modeling

“ showed the maximum actual plant wide SO 2 emissions from each of the power plants were projected to cause violations on the 1

- hour SO 2 NAAQS ” while UDAQ ’s SO 2 air modeling

results indicate d no violations of the 1

- hour SO 2 NAAQS at the receptors modeled for the Hunter and Huntington plants based on the modeling of actual emissions from 2012

- 2014.

The Commenter contends that “ UDAQ has applied an approach to modeling that greatly

understates SO 2 air quality in the vicinity around the Hunter and Huntington plants and most likely resulted in un

- reported violations of the 1

- hour SO 2 NAAQS. ” The Commenter states that

“ UDAQ arbitrari ly excluded areas where it was supposedly not feasible to locate an air monitor

, and questions the validity of UDAQ’s modeling infrastructure and its ability to capture

maximum SO 2 concentrations. ” The Commenter contends that UDAQ’s modeling and monitoring methodologies are not adequate to ensure that the 1

- hour SO 2 NAAQS is met throughout Utah.

Response 3 : The EPA disagrees with the Commenter that Utah’s SO 2 NAAQS infrastructure SIP is inadequate with respect to the ambient air quality monitoring and modeling requirements of sections 110(a)(2)(B) and 110(a)(2) (K) respectively. I nfrastructure SIPs are general planning SIPs to ensure that a state has adequate r esources and authority to implement a NAAQS. Infrastructure SIP submissions are not intended to act or fulfill the obligations of the Data Requirements Rule. While infrastructure SIPs must address modeling authorities in general for section 110(a)(2)(K), t h at section requires infrastructure SIPs to provide the state's authority for air quality modeling and for submission of modeling data to the EPA, not specific air dispersion modeling for large stationary sources of pollutants.” In the proposal for this ru lemaking action,6

the EPA provided a detailed explanation of Utah’s authority to conduct air quality modeling and to submit modeling data to the EPA. Furthermore, as stated in the proposal, the EPA is not acting on section 110(a)(2)(B) for the 2010 SO 2 NAAQ S. The EPA provides further details on the Commenter’s statement that Utah’s infrastructure SIP is inadequate for purposes of the

infrastructure SIP elements (B) and (K) in subsequent responses , including Responses 4 and 5. On April 12, 2012, the EPA explained its expectations regarding implementation of the

2010 SO 2 NAAQS via letters to e ach of the states. The EPA communicated in the April 2012

letters that all states were expected to submit SIPs meeting the ‘‘infrastructure’’ SIP requirements und er section 110(a)(2) of the CAA by June 2013. At the time, the EPA was

u ndertaking a stakeholder outreach process to continue to develop possible approaches for determining attainment status under the SO 2 NAAQS and implementing this NAAQS. The EPA

was abun dantly clear in the April 2012 letters that the EPA did not expect states to submit

substantive attainment demonstrations or modeling demonstrations showing attainment for areas not designated nonattainment in infrastructure SIPs due in June 2013. Although the EPA had previously suggested in its 2010 SO 2 NAAQS preamble and in prior draft implementation guidance in 2011 that states should, in the unique SO 2 c ontext, use the section 110(a) SIP process as the vehicle for demonstrating attainment of the NAAQS, this approach was never adopted as a binding requirement and was subsequently discarded in the April 2012 letters to states. The April

2012 letters recommended that states focus on infrastructure SIPs due in June 2013, such as

Utah ’s SO 2 infrastructure SIP, on traditional ‘‘infrastructure elements’’ in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for areas not designated as

nonattainment. 6 Although the Commenter’s evaluations of modeling de monstrations could be consider ed in the context of NAAQS designations , they are not relevant at the earlier stage of reviewing an

infrastructure SIP submission

. N o areas in Utah have been designated for the 2010 SO 2 NAAQS at this point in time. The CAA does not provide explicit requirements for demonstrating

attainment of a NAAQS for areas that have not yet been designated for that NAAQS. As stated previously, the proper inquiry in this action is whether Utah has met the basic structural SIP require ments appropriate at the point in time the EPA is acting up on the

6 In the EPA’s final SO 2 NAAQS preamble (75 FR 35520 (June 22, 2010)) and subsequent draft guidance in March and September 2011, the EPA had expressed its expectation that many areas would be initi ally designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support their designations recommendations due in June 2011. In order to address concerns about potential violations in these unclassifiable areas, the EPA initially recommended that states submit substantive attainment demonstration SIPs bas ed on air quality modeling by June 2013 (under section 110(a)) that show how their unclassifia b le areas would attain and maintain the NAAQS in the future. Implementation of the 2010 Primary 1

- Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) (for discussion purposes with Stakeholders at meetings in May and June 2012 ), available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, the EPA clearly stated in this 2012 Draft White Paper its clarified implementation position that it was no longer recommending such attainment demonstrations for unclassif iable areas for

June 2013 infrastructure SIPs. Id. The EPA had stated in the preamble to the NAAQS and in the prior 2011 draft guidance that the EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 1 10 and 191 of the CAA. Section 191 of the CAA requires states to submit SIPs in accordance with section 172 for areas designated

nonattainment with the SO 2 NAAQS. After seeking such comment, the EPA has now issued guidance for the nonattainment area

SIPs d ue pursuant to sections 191 and 172. See Guidance for 1

- Hour SO 2 Nonattainment Area SIP Submissions, Stephen D. Page, Director, EPA’s Office of Air Quality Planning and Standards, to Regional Air Division Directors Regions 1

– 10 (April 23, 2014). In Septembe r 2013, the EPA had previously issued specific guidance relevant to infrastructure SIP submissions due for the NAAQS, including the 2010 SO 2 NAAQS. See Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)( 1) and 110(a)(2), Stephen D. Page, Director, EPA’s Office of Air Quality Planning and Standards, to Regional Air Division Directors Regions 1

– 10, (Sept. 13, 2013) (hereinafter “Infrastructure SIP Guidance”), available at https://www3.epa.gov/airquality/urb anair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Se p t_2013.pdf.7

infrastructure submittal. Determination of attainment status under the SO 2 NAAQS is due on a

different schedule from the section 110 infrastructure elements. A state, like Utah , may reference preexisting SIP rules and emission reduction measures that control emissions of SO 2 . These provisions were discussed in the proposed rulemaking and have the ability to reduce SO 2 overall. Although the Utah SIP relies on measures and programs used to implement previous SO 2 NAAQS, these provisions are not limited to reducing SO 2 levels to meet one specific NAAQS

and will continue to provide benefits for the 2010 SO 2 NAAQS.

C omment 4 : UDAQ Improperly Excluded Parts of Ambient Air from Its Modeling Analysis of the Hunter and Huntington Power Plants’ Impacts on 1

‐ Hour Average SO 2 Concentrations.

The Commenter states that “ EPA cannot approve [110(a)(2)(K)] of Utah’s SO 2 NAAQS infrastructure SIP when it is clear that UDAQ’s modeling will not ensure compliance with the

SO 2 NAAQS.” The Commenter explains that “UDAQ’s SO 2 modeling methodology is not protective of the 1

- Hour SO 2 NAAQS because UDAQ improperly excludes ambient air receptors

where violations of the 1

- Hour SO 2 NAAQS are likely occurring.” T he Commenter states that UDAQ excluded receptors from its modeling analyses based on a claim that it would not be feasible to place a monitor due to steep and inaccessible terrain

. 7 According to the Commenter, UDAQ cited the EPA’s “ SO 2 NAAQS Designations Modeling Technical Assistance Document,” February 2016 Draft, for support in excluding receptors from its modeling of the Hunter and Huntington plants. The Commenter then points to the EPA’s proposed approval of 110(a)(2)(K) of Utah’s infrastructure SIP, and contends that R308

- 405

- 13, which incorporates the EPA’s Guideline on Air Quality Models in 40 CFR 51, appendix W, does not allow for exclusion of receptors in areas where it is not feasible to place an ambient air monitor and references Sec tions 4.2.1. 2.a.,

b. and 7.2.2. of Appendix W. The Commenter claims that one benefit and purpose of air dispersion modeling is to predict pollutant concentrations in all locations potentially i mpacted by a source(s) because it may not be feasible to locate a monitor i n all areas impacted by a

source (s)

. The Commenter cites to the EPA’s SO 2 NAAQS Modeling Technical Assistance Document (“ SO 2 Modeling TAD”) which states that one of the differences between the modeling TAD and Appendix W is the placement of receptors only in areas where it is feasible to place a

monitor. The Commenter references the EPA’s February 2016 Draft “ SO 2 NAAQS Source

‐ Oriented Monitoring Technical Assistance Document” (“ SO 2 Monitoring TAD”)

, which includes two examples of water bodies and facility property to illustrate “are as feasible to place a
monitor.” The Commenter contends that “ it is inconceivable that EPA intended areas of steep

terrain to be excluded in a SO 2 modeling analysis ” and c ites to the EPA’s SO 2 Monitoring TAD

to illustrate that valleys can have significant impacts on pollution transport and dispersion

. The Commenter contends that UDAQ’s approach is inconsistent with the EPA’s historic interpretation of “ambient air

. ” Citing to a 1980 EPA letter, the Commenter asserts “ that the only exemption from ambient air is an area within a facility boundary and only if it is fenced or otherwise physically precludes access to the general public. ” The Commenter states that the receptors Utah is excluding in the Hunter and Huntington modeling are on public land and are in

7 The Commenter cites State of Utah, 1

- Hour SO 2 Data Requirements Rule Modeling Demonstration (May 5, 2016) and UDAQ’s Modeling Protocol Addendum.8

the ambient air

, and therefore the 1

‐ hour average SO 2 NAAQS must apply at those ambient air
receptors. The Commenter then goes o n to compare the third

- party modeling results to the UDAQ’s modeling and states that the third

- party modeling scenarios showed “ that the maximum actual plantwide SO 2 emissions emitted over an hour at each of the plants could cause exceedances of

the 1

‐ hour SO 2 (based on the 99 th percentile value or 4th

‐ highest for a given year) at various locations near the two power plants. ” The Commenter contends that UDAQ’s excluded receptors

in its modeling demonstration “ very likely excluded areas that would have b een modeled to

violate the 1

‐ Hour SO 2 NAAQS ” and that emails obtained from UDAQ “ strongly imply that the exclusion of receptors allowed UDAQ to demonstrate attainment at the Hunter and Huntington

sites. ” The Commenter a sserts that the EPA has “approved” UD AQ’s modeling protocol including its excluded receptors from its attainment modeling for the Hunter and Huntington

units.

Response 4 : As provided in previous responses, the EPA disagrees with the Commenter that the EPA must disapprove the modeling component of Utah ’s SO 2 infrastructure SIP because UDAQ modeling does not ensure compliance with the SO 2 NAAQS. In acting to approve or disapprove an infrastructure SIP, the EPA is not required to make findings regarding current air quality

status of areas within the state, such area’s projected future air quality status, or whether modeling methodologies for future attainment demonstrations are sufficient to meet a NAAQS in the area. The EPA finds the Commenter’s discussion of UDAQ’s modeling meth odolog y (regardless of whether the modeling is intended to inform SO 2 monitor placement or to

demonstrate 1

- hour SO 2 NAAQS attainment) to be irrelevant to the analysis of Utah’s

infrastructure SIP . Rather, for the infrastructure SIP requirements of section 110(a)(2)(K), EPA

considers whether the SIP provides Utah officials with the legal authority to (1) conduct air quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated, and (2) provide such modeling data to the EPA Administrator upon request . As explained previously, that determination is separate from the NAAQS designations process for which the State prepared its modeling protocol s

. 8 Furthermore, to the extent the Commenter believes certain UDAQ emails “indicate that EPA has ‘approved’ UDAQ’s modeling protocol,” and that any such approval should have been a final agency action subject beforehand to public comment, the Commenter is mistaken. Although the EPA may informally advise states about whether it believes that their modeling protocols conform with applicable EPA guidance, that advice does not constitute final agency action, and is not subject to notic e and comment rulemaking.

Comment 5 : UDAQ Improperly Determined Areas Not to Be Feasible for Ambient Air Monitoring Around the Hunter and Huntington Plants, and Thus EPA Must Disapprove

the SO 2 Monitoring Element of Utah’s Infrastructure SIP as Inadequate to Protect the 1

‐ Hour SO2 NAAQS

. The Commenter states that the EPA must disapprove the SO 2 monitoring element of Utah’s infrastructure SIP because it is inadequate to protect the 1

- hour SO 2 NAAQS . The Commenter explains that UDAQ improperly determined that areas around the Hunter and Huntington Plants are not feasible for ambient air monitor placement and excluded monitor

locations in areas where violations of the 1

‐ Hour SO 2 NAAQS are likely occurring

. The9

Commenter contends that UDAQ’s appr oach in determining locations that are not feasible for location of air monitors “is entirely inconsistent with EPA’s historic interpretation of ambient air” and is not protective of public health.

. . The Commenter contends that the areas excluded from UD AQ’s Hunter and Huntington modeling is unjustified because if the EPA were to allow for certain terrain exclusions from SO 2 modeling attainment designation analyses, then sources located within complex terrain and/or more remote areas could avoid having to reduce SO 2 emissions to comply with the 1

‐ hour average SO 2 NAAQS. The Commenter cites to the EPA’s Guideline on Air Quality Models which notes that “[o]ften the highest concentrations are predicted to occur under very stable conditions, when the plume is near, or impinges on, the terrain.” Section 4.2.1.2.b. of E PA’s Guideline on Air Quality Models in 40 C.F.R. Part 51, Appendix W. The Commenter states that the primary objective of the location of ambient air monitoring for SO 2 NAAQS designation is to determine peak 1

‐ hour average SO 2 concentrations

in the area around a source. According to the Commenter, t he EPA’s SO 2 Monitoring TAD suggests conducting air modeling to aid in monitoring site identification. The Commenter states

that based on the EPA’s SO 2 Monitoring TAD, the modeling the Commenter conducted for the Hunter and Huntington Power Plants are the types of analyses the EPA would use to inform the proper siting of ambient air monitors at areas of likely maximum SO 2 concentrations near such

facilities

. The Commenter contends that UDAQ excluded many of the locations that , according

to third

- party modeling

, could have been in violat ion of the 1

‐ hour SO 2 NAAQS due to actual emissions from the Hunter and Huntington Power Plants

. The Commenter further contends that

the UDAQ excluded these areas from its Hunter and Huntington modeling for being “inaccessible,” but that the areas actually are accessible via various roads, off

‐ highway vehicle trails, and hiking trails. The Commenter also notes the availability of sulfur dioxide air monitors designed for tran sportation and operation in remote locations

. Thus

, the Commenter contends that the areas UDAQ excluded from monitoring must be considered as feasible locations for

ambient monitors.

Response 5 : The EPA disagrees with the Commenter that it must disapprove the SO 2 monitoring element of Utah’s infrastructure SIP as inadequate to protect the 2010 SO 2 NAAQS due to ambient air monitoring around the Hunter and Huntington plants. First, the EPA did not prop ose action on element 110(a)(2)(B) for the 2010 SO 2 NAAQS. We only proposed to act on this

ele ment for the 2008 ozone NAAQS. The Commenter does not identify any way in which their concerns are relevant to ambient air monitoring for the 2008 ozone NAAQS. Th e EPA will act on Utah’s submission for element 110(a)(2)(B) for the 2010 SO 2 NAAQS in a separate action.

Comment 6 : Utah’s SO 2 Infrastructure SIP Lacks Necessary Enforceable Emission Limitations in Violation of CAA Section 110(a)(2)(A).

The Commenter contends that Utah’s infrastructure SIP does not meet basic structural requirements of section 110(a)(2) (A) for the 2010 1

- hour SO 2 NAAQS because rules containing emission limits and control measures for emitting activities were not analyzed for the 2010 SO 2 standard and that establishing such limits and measures through SIP

‐ a pproved permits is insufficient. The Commenter points to air dispersion modeling of the Hunter and Huntington plants it had conducted, and contends that emission limitations relied o n in the State’s infrastructure SIP do not prevent exceedances and therefore Utah’s infrastructure SIP must be disapproved under sections 110(a)(1) and ( a )( 2 ). The Commenter contends that the State’s10

infrastructure SIP mu s t include enforceable emission limitations under section 110(a)(2)(A) as section 110(a)(2)(E) is a separate component requiring adequate personnel, funding, and authority to carry out state implementation plans.

Response 6 : The EPA disagrees with the Comm enter that the EPA must disapprove Utah’s SO 2 infrastructure SIP for the reasons provided by the Commenter, including the Commenter’s modeling results and insufficient SO 2 emission limits. The EPA is not

, in this action

, making a determination regarding Utah’s current air quality status or whether its control strategy is sufficient to attain and maintain the NAAQS. Therefore, the EPA is not making any judgment on whether the Commenter’s submitted modeling demonstrates the NAAQS exceedances that the

Commenter claims. The EPA disagrees with the Commenter that infrastructure SIP submissions are required

to contain emission limits assuring in

- state attainment of the NAAQS . However, the EPA does recognize that in the past, stat es have, in their discretion, used infrastructure SIP submittals as a
”vehicle” for incorporating regulatory revisions or source

- specific emission limits into the state’s plan. See 78 FR 73442 ( Dec. 6, 2013) (approving regulations Maryland submitted for

in corporation into the SIP along with the 2008 ozone infrastructure SIP to address ethics requirements for State Boards in sections 128 and 110(a)(2)(E)(ii)). While these SIP revisions are intended to help the state meet the requirements of section 110(a)(2), these “ ride

- along ” SIP revisions are not intended to signify that all infrastructure SIP submittals must, in order to be approved by the EPA, have similar regulatory revisions or source specific emission limits. Rather, the regulatory provisions and source specific emission limits the state relies on when showing compliance with section 110(a)(2) have, in many cases, likely already been incorporated into the state’s SIP prior to each new infrastructure SIP submission; in some cases this was done for entirely separate CAA requirements, such as for previous NAAQS.

As stated in previous responses, the EPA’s longstanding position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state . Infrastructure SIPs do not

determine whether each individual area of the state is meeting the applicable NAAQS, as this question is addressed through the NAAQS designations process . As previously mentioned, the EPA has interpreted this to mean, with regard to the requirement for emission limitations

, that states may rely on measures already in place to address the pollutant at issue or any new control

measures that the state may choose to submit

.

Comment 7 : EPA Must Disapprove Utah’s SO 2 I

‐ SIP Certification as it Lacks Enforceable Emission Limitations That Ensure Attainment and Maintenance of the NAAQS.

The Commenter asserts that the EPA must disapprove Utah’s SO 2 infrastructure SIP

certification because it lacks enforceable emission limitations that ensure attainment and maintenance of the NAAQS

. In support, the Commenter cites: CAA section 110(a)(2)(A ); 79 FR

18648 ( noting that infrastructure SIPs must contain enforceable emission limit to aid in attaining and/or maintaining NAAQS ); and CAA section 110(a)(2)(H) (providing for revisions of SIPs when the Administrator finds that a plan is “substantially inadequate to attain t he [NAAQS] which it implements”)

. The Commenter relies on Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto Ins. Co. , 463 U.S. 29, 43 (1983) and NRDC v. EPA , 571 F.3d 1245, 1254 (D.C. Cir. 2009)

to contend that the EPA must consider the Commenter’s modeling data on Utah EGUs including11

the Hunter and Huntington Plants as additional information provided during a rulemaking process under administrative law principles.

Response 7 : The EPA disagrees with the Commenter’s statemen t that EPA must disapprove Utah’s infrastructure SIP. Furthermore, the EPA finds that the Commenter’s submitted modeling is not relevant to the approvability of Utah’s proposed infrastructure SIP for the 2010 SO 2 NAAQS f

or the reasons previously explained

. T he purpose for which the Commenter submitted

the modeling

— namely, to assert that current air quality in the areas in which those sources are located does not meet the NAAQS

— is not relevant to the EPA’s action on this infrastructure SIP, and consequently the EPA is not required to consider the modeling in evaluating the approvability of the infrastructure SIP. I nfrastructure SIPs are not required to contain emission limitations informed by air dispersion modeling in order to meet the requirements of sectio n 110(a)(2)(A). As previously discussed, in acting to approve or disapprove an infrastructure SIP, the EPA is not required to make findings regarding current air quality status of areas within the state, regarding such areas’ projected future air quality s tatus, or regarding whether existing emissions limits in such areas are sufficient to meet a NAAQS. T he EPA has made no judgment regarding whether the Commenter’s submitted modeling is sufficient to show violations of the NAAQS.

Comment 8: The Plain Lang uage and Legislative History of the Clean Air Act Require that

Infrastructure SIPs Contain Enforceable Emission Limits that Ensure Attainment and Maintenance of the NAAQS. The Commenter cites two excerpts from the legislative history of the 1970 CAA claiming they support an interpretation that SIP s under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of the state. The Commenter also contends that the legislative history of the CAA supports t he interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the

1970 CAA.

Response 8 : The EPA disagrees with the Commenter’s statement that the legislative history provides support for the interpretation of CAA section 110 in the manner that the Commenter
suggests. As provided in response 1 , the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined the CAA

framework and deleted relevant language from section 110 concerning demonstrati on of

attainment. See also 79 FR at 17046 (responding to comments on Virginia’s ozone infrastructure

S IP). T he two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs, and they do not mention or otherwise address whether states are required to include maintenance plans for all ar eas of the state as part of the infrastructure SIP. As provided in response to another comment in this rulemaking, the proposed rule explains why the Utah’s SIP includes enforc eable emissions limitations for SO 2

.

Comment 9 : EPA Regulations Implementing th e Clean Air Act Require that Infrastructure

SIPs Contain Enforceable Emission Limits that Ensure Attainment and Maintenance of the NAAQS.12

The Commenter cites to 40 CFR 51.112(a), which provides that ‘‘[e]ach plan must demonstrate that the measures, rules

, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].’’ The Commenter asserts that this regulation requires infrastructure SIPs to include emissions limits necessary to ensure attainment

and main tenance of the NAAQS. The Commenter states that the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs and instead applies to infrastructure SIPs which are required to attain and maintain the NAAQS in areas not designated nonattainment. The Commenter relies on a statement in the preamble to the final rule promulgating 40 CFR 51.112

which stated that ‘‘[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .’’ 51 FR 40656, 40656 ( Nov. 7, 1986).

Respon se 9 : The EPA disagrees that 40 CFR 51.112 requires infrastructure SIPs to contain enforceable emission limits adequate to ensure attainment and maintenance of the NAAQS. As an initial matter, the EPA notes that this regulatory provision was initially promulgated and later restructured and consolidated prior to the CAA Amendments of 1990, in which Congress removed all references to ‘‘attainment’’ in section 110(a)(2)(A). And, it is clear on its face that

40 CFR 5 1.112 applies to plans specifically designed to attain the NAAQS. The EPA interprets these provisions to apply when states are developing ‘‘control strategy’’ SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as sections 175A, 181

– 182, and 191

– 192. The Commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to the EPA’s action ‘‘restructuring and consolidating’’ provisions in part 51, the EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were ‘‘beyond the scope’’ of the rulemaking. It is important to note, however, that the EPA’s action in 1986 was

not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. The EPA noted that it had already issued guidance addressing the new ‘‘Part D’’ attainment planning obligations. Also, as to maintenance regulations, the EPA expressly stated that it was not making any

revisions other than to re

- number those provisions (51 FR 40657 ( Nov. 7, 1986 ) ). Although the EPA was explicit that it was not establishing requirements interpreting the provisions of new ‘‘Part D’’ of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, the EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (‘‘Control strategy: SOx and PM (portion)’’), 51.14 (‘‘Control strategy: CO, HC, Ox and NO2 (portion)’’), 51.80 (‘‘Demonstration of attainment: Pb (portion)’’), and 51.82 (‘‘Air quality data (portion)’’). 51 FR 40657, 40660 . Thus, the present

- day 40 CFR 51.112 contains consoli dated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

Comment 10: EPA Interpretations of Section 110 in Other Rulemakings Require that

Infrastructure SIPs Contain Enforceable Emission Limits that Ensure Attainment and Maintenance of the NAAQS. The Commenter also references a prior EPA SIP disapproval to claim that it shows that

the EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject the SIP. The Commenter points to a 2006 partial approval and partial disapproval of revisions to Missouri’s existing control strategy plans addressing the SO 2 NAAQS. The Commenter claims the EP A cited section 110(a)(2)(A) for disapproving a revision to the state plan on the basis that the State failed to13

demonstrate the SIP was sufficient to ensure maintenance of the SO 2 NAAQS after revision of

an emission limit . Similarly, the Commenter claims the EPA cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. The Commenter claims the revisions to Missouri’s control strategy SIP for SO 2 were rejected by the EPA because

the revised control str ategy limits were also in Missouri’s infrastructure SIP

, and thus the weakened limits would have impacted the infrastructure SIP’s ability to aid in attaining and maintaining the NAAQS.

Response 10 : The EPA does not agree that the prior Missouri rulemaking action referenced by

the Commenter establishes how the EPA reviews infrastructure SIPs. It is clear from the final

Missouri rule that the EPA was not reviewing initial infrastructure SIP submissions und er section 110 of the CAA, but rather reviewing revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. The EPA’s partial approval and partial disapproval of revisions to restrictions on emissions o f sulfur compounds for the Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an infrastructure SIP. Nothing in that action addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS.

Comment 11: Supreme and Appellate Court Opinions Hold that Infrastructure SIPs Must

Contain Enforceable Emission Limits that Ensure Attainment and Maintenance of the NAAQS. The Commenter discusses several cases applying the CAA which the Commenter claims support its contenti on that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent exceedances of the NAAQS. The Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requir ement for

“ emission limitations ” and stating that emission limitations “ are the specific rules to which operators of pollution sources are subject, and which, if enforced, should result in ambient air

which meet s the national standards. ” The Commenter also cites to Pennsylvania Dept. of Envtl.

Resources v. EPA

, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs the EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to

Mision Ind ustrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quotes section 110(a)(2)(B) of the CAA of 1970. The Commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110
, quoting Alaska Dept. of Envtl.
Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the

CAA and also stated that “ SIPs must include certain measures Congress specified ” to ensure attainment of the NAAQS. The Commenter also quo tes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) ( “ The Clean Air Act directs states to develop implementation plans

- SIPs

- that ‘ assure ’ attainment and maintenance of [NAAQS] through enforcea ble emissions limitations ” ) . The Commenter cites to Hall v. EPA 273 F.3d 1146, 1157

- 61 (9th Cir. 2001) to conclude that “[j]ust as a plan revision must not interfere with attainment of the NAAQS under section 110(l), an infrastructure SIP must, in the firs t place, include enforceable limits sufficient to ensure attainment and maintenance of the NAAQS under 110(a)(2)(A).” Finally, the Commenter cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d

181 (6th Cir. 2000) for the proposition that “EPA’s deference to a state is conditioned on the state’s submission of a plan ‘which satisfies the standards of § 110(a)(2)’ and which includes emission limitations that result in compliance with the NAAQS

. ”14

Response 11 : The EPA disagrees with the Commenter’s contention that these cases support the proposition that section 110(a)(2)(A) clearly requires infrastructure SIPs to include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how sect ion 110(a)(2)(A) may reasonably be interpreted. With the exception of

Train v. NRDC

, none of the cases the Commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre

- 1990 Act). Rather, the courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre

- 1990 CAA) in the background sections of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved or disapproved as meeting other provisions of the CAA or in the context

of an enforcement action. In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submission s. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “ postponements ”

that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive

criteria. The Court concluded that the EPA reasonably interpreted section 110(f) not to restrict a

state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to

the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide

for attainment or whether emission s limits to ensure attainment are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the

emission limits in its SIP if such a revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly reference d the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the

pre

- 1990 provision of the CAA. At issue was whether the EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre

- 1990 CAA in support of the EPA's disapproval, but did not provide any in terpretation of that provision. Yet, even if the Court had interpreted that provision, the EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial

, 547 F.2d 123, was the d efinition of “ emissions limitation, ”

not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not i nterpret but merely describes section 110(a)(2)(A). The Commenter

does not raise any concerns about whethe r the measures Utah relied on in its infrastructure SIPs

are “ emissions limitations ” and the decision in this case has no bearing here. 9 In Mont. Sulphur

& Chem. Co.

, 666 F.3d 1174, the Court was not reviewing an infrastructure SIP, but rather the EPA's disapproval of a SIP and promulgation of a federal implementation plan (FIP) after a long history of the state failing to submit an adequate SIP in response to the EPA's finding under

9 While the Commenter does contend that Utah shouldn’t be allowed to rely on emission reductions that were developed for the prior standards (which we address herein), it does not claim that any of the measures are not ‘‘emissions limitations’’ within the

de finition of the CAA.15

section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which

focused instead on whether the EPA's finding of SIP inadequacy, disapproval of the state's required responsive attainment demonstration under section 110(k)(5), and adoption of a remedial FIP under section 110(c) were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments

do no t alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre

- 1990 version of that provision and the Court made no mention of the changed language. Furthe rmore, the Commenter also quotes the Court's statement that “ SIPs must include certain measures Congress specified, ” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program to regulate the modification and construction of new sources. Notably, at issue in that case was the state's "new source" permitting program, not its

infrastructure SIP. Two of the other cases the Commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181,

and Hall v. EPA

, 273 F.3d 1146, interpret CAA section 110(1), the provision governing "revisions" to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of

the CAA.

Comment 12 : The Emission Limitations Relied Upon by the State in Its I

‐ SIP are

Insufficient To Attain and Maintain the N AAQS, as Demonstrated by Air Dispersion Modeling of the Hunter and Huntington Power Plant s

— Two Sources Currently Permitted to Cause Exceedances of the NAAQS. Citing section 110(a)(2)(A) of the CAA, the Commenter contends that the EPA may not approve Utah’s proposed 2010 SO 2 infrastructure SIP because emission limitations fail to prevent exceedances of the NAAQS and, therefore, do not provide for implementation, maintenance, and enforcement of the 2010 SO 2 NAAQS. The Commenter state s coal

- fired electric generating units (EGUs) are large contributors to SO 2 emissions but contends Utah did not demonstrate that emissions allowed by the proposed infrastructure SIP from such large

sources of SO 2 will ensure compliance with the 2010 1

- hour SO 2 NAAQS. The Commenter then refers to air dispersion modeling it conducted for two EGUs in Utah, including the Hunter and Huntington Plants. The Commenter asserts the results of the air dispersion modeling it conducted employing the EPA’s AERMOD program for modeling used the plants’ “ allowable emissions and/or maximum actual hourly emissions and demonstrated that the levels of SO 2 emissions allowed to be emitted under current regulations and permits allow for exceedances of the 2010

one

‐ hour SO 2 NAAQS

. ” 10 T he Commenter asserts that the infrastructure SIP fails to include adequate enforceable emission limitations for sources of SO 2 sufficient to ensure attainment and

maintenance of the 2010 SO 2 NAAQS

. 11 The Commenter asserts that the Hunter and Huntington

10 The Commenter asserts its modeling followed protocols pursuant to 40 CFR part 51, Appendix W and EPA’s modeling guidance issued March 2011 and December 2013.

11 The Commenter provides a chart in its comments claiming p redicted highest fourth high 1

‐ hour average SO 2 concentration due to Hunter units emitting at allowable SO 2 emission rates.16

pl ant permits have exemptions for periods of SSM and maintenance/planned outage s during which no specific emission limit applies. The Commenter claims that the limits in Utah’s infrastructure SIP are insufficiently protective of the NAAQS and that actual SO 2 emissions while operating pursuant to the allowable SO 2 emission limitations can be expected to cause

violations of the SO 2 NAAQS. 12

The C ommenter claims that Utah’s infrastructure SIP is inadequate to attain and maintain the NAAQS which it implements bec ause emission limits under the laws and regulations cited to

in the SO 2 infrastructure certification allow for exceedances of the NAAQS. The Commenter contends that, where infrastructure SIPs are due within the same timeframe as area designations, Congress intends states to set forth enforceable emission limitations and other substantive

measures in their i nfrastructure SIPs. The Commenter asserts that the EPA “must set forth a Federal Implementation Plan (“FIP”) which incorporates necessary and app ropriate source

‐ specific enforceable emission limitations (preferably informed by modeling) on the Hunter Power Plant and the Huntington Power Plant, as well as any other major sources of SO 2 pollution in the State which are not presently located in nonatt ainment areas and have modeled

exceedances of the NAAQS

, ” and s t ates that emission limits must apply at all times, including during periods of start

‐ up, shutdown, and malfunction.

Response 12 : For reasons explained in response 6, the EPA disagrees with the Commenter that the EPA must disapprove Utah’s SO 2 infrastructure SIP regarding modeling results and

insufficient SO 2 emission limits. As discussed previously, EPA reasonably interprets section 110(a)(2)(A) of the CAA to require states to submit infrastructure SIPs that reflect the first step in their planning for attainment and maintenance of a new or revised NAAQS. These SIP revisions should contain a demonstration that the state has the available tools and authority to develop and imple ment plans to attain and maintain the NAAQS and show that the SIP has

enforceable control measures.

As for the AERMOD air dispersion modeling conducted by the Commenter for the Hunter and Huntington facilities, as stated in previous responses, the EPA does not find the modeling information relevant at this time for review of an infrastructure SIP. While the EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations, the EPA has affirmatively stat ed such modeling was not needed to demonstrate

attainment for the SO 2 infrastructure SIPs under the 2010 SO 2 NAAQS. See April 12, 2012 letters to states regarding SO 2 implementation and Implementation of the 2010 Primary 1

- Hour

SO2 NAAQS, Draft White Paper for Discussion, May 2012, available at http://www.epa.gov/airqualitysulfurdioxide/implement.html.

The EPA has promulgated a Data Requirements Rule which requires state air agencies to characterize air quality around SO 2 sources through ambient air monitoring

, air quality modeling

, or by providing a federally enforceable emission limitation which limits source emissions to less than 2,000 tons per year of SO 2

. 80 FR 51052 (Aug. 21, 2015). The rule includes a lengthy

discussion of how the EPA anticipates addressing modeling that informs determinations of states’ air quality status under the 2010 SO 2 NAAQS

. Finally, the EPA disagrees with the Commenter’s statements that EPA must disapprove
Utah’s infrastructure SIP submission because it doe s not establish specific enforceable SO 2

12 The Commenter provides a chart in its comments claiming the Predicted Highest Fourth High 1

‐ Hour Average SO 2 Concentration Due to Hunter Units and Huntington Units Emitting at Plantwide Maximum Actual Hourly SO 2 Emission Rates During 2012 and 2013.17

emission limits, either fo r coal

- fired EGUs or other large SO 2 sources, in order to demonstrate attainment and maintenance with the NAAQS at this time

.

Comment 13 : EPA May Not Approve the SO 2 I

‐ SIP Certification As it Fails to Include Enforceable SO 2 Emission Limitations With a One

‐ Hour Averaging Period that Appl ies at All

Times. The Commenter cites to CAA section 302(k) which requires emission limits to apply on a

continuous basis. The commenter claims the EPA has stated that 1

- hour averaging times are necessary for the 2010 S O 2 NAAQS citing EPA's April 23, 2014 Guidance for 1

- Hour S02

Nonattainment Area SIP S ubmissions, a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environ ment regarding the need for 1

- hour SO 2 emission limits in a PSD permit, an EPA Environmental Appeals Board (EAB) decision rejecting use of a 3

- hour averaging time for a n SO 2 limit in a PSD permit, and the EPA's disapproval of a Missouri SIP which relied on annual averaging for SO 2 emission rates. 13 Thus, the Commenter contends the EPA must disapprove Utah’s infrastructure SIP which the Commenter claims fails to require emission limits with adequate averaging times.

Response 13 : The EPA disagrees that the EPA must disapprove the proposed Utah infrastructure

SIP because the SIP does not contain enforceable SO 2 emission limitations with 1

- hour averaging periods that apply at all times, as this issue is not appropriate for resolution at this stage. The comm ent does not assert that the SO 2 emission limits in the Utah’s SIP are not enforceable, instead the comment focuses on the lack of 1

- hour averaging times. We do not believe, as suggested by the Commenter, t hat the emission limits are not “ continuous ” within the meaning of section 302(k). As the EPA has noted previously, the purpose of the section 110(a)(2) SIP is to ensure that the State has the necessary structural components to implement programs for attai nment and maintenance of the NAAQS.

While the EPA does agree that the averaging time is a critical consideration for purposes of substantive SIP revisions, such as attainment demonstrations, the averaging time of existing

rules in the SIP is not relevant for determining that the State has met the applicable requirements of section 110(a)(2) with respect to the infrastructure elements addressed in the present SIP

action. 14 Therefore, because the EPA finds Utah’s SO 2 infrastructure SIP approvable without

SO 2 emission limitations showing in

- state attainment of the NAAQS, EPA finds the issue of appropriate averaging periods for such future limitations not relevant at this time. The Commenter has cited prior EPA discussion on emission limitations required in PSD permits (an EAB decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA, which is neither relevant nor applicable to the present SIP action. In addition, as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to a control strategy SIP required pursuant to part D attainment planning

, and is likewise not relevant to the analysis of infrastructure SIP requirements.

13 Sierra Club cited In re Mississippi Lime Co., PSDAPLPEAL 11

– 01, 2011 WL 3557194, at *26

– 27 (EAB Aug. 9, 2011) and 71 FR 12623, 12624 (Mar . 13, 2006) (EPA disapproval of a control strategy SO 2 SIP).

14 For a discussion on emission averaging times for emissions limitations for SO 2 attainment SIPs, see See Guidance for 1

- Hour

SO 2 Nonattainment Area SIP Submissions, Stephen D. Page, Director, EPA’s Office of Air Quality Planning and Standards, to Regional Air Division Directors Regions 1

– 10 (April 23, 2014). EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1

- hour emissions rates through emission l imits with averaging times that are longer than 1

- hour, using averaging times as long as 30

- days, but still provide for attainment of the 2010 SO 2 NAAQS as long as the limits are of at least comparabl e stringency to a 1

- hour limit at the critical emission value. EPA has not yet evaluated any specific submission of such a limit, and so is not at this time prepared to take final action to implement this concept.18

Comment 14 : Appropriate Enforceable Emission Limitations in the Infrast ructure SIP are Necessary to Avoid Additional Nonattainment Designations. The Commenter states that enforceable emission limits in SIPs or permits are necessary

to avoid nonattainment designations in areas where modeling or monitoring shows SO 2 levels

that exceed the 1

- hour SO 2 NAAQS and cites to a February 6, 2013 EPA document, Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality

Standard

, which the Commenter contends discusses how states could avoid fu ture nonattainment designations. The Commenter also quotes the f inal SO 2 NAAQS Rule which states areas will “be designated ‘nonattainment’ if either available monitoring data or modeling shows that a violation exists, or ‘attainment’ if both available moni toring data and modeling indicate the area is attaining.” The Commenter asserts that the EPA must ensure enforceable emission limits in the

Utah infrastructure SIP to prevent “ exceedances ” of the SO 2 NAAQS. The Commenter claims the modeling it conducted for the Hunter and Huntington power plants indicates the areas around these plants may be warranted to be designated nonattainment with the 2010 SO 2 NAAQS

without such enforceable SO 2 limits. In summary , the Commenter asserts the EPA must disapprove the Utah infrastructure SIP and ensure emission limits will not allow large sources of

SO 2 to cause exceedances of the 2010 SO 2 NAAQS.

Response 14 : While the EPA appreciates the Commenter’s concern with avoiding nonattainment designations in Utah for the 2010 SO 2 NAAQS

, the EPA disagrees with the Commenter’s statement that an infrastructure SIP must prevent such future nonattainment designations. Congress designed the CAA such that states have the primary responsibility for achieving and maintaining the NAAQS within their geographic area by submitting SIPs which will specify the

details of how the state will meet the NAAQS. Pursuant to section 107(d), the states make initial recommendations of designations for areas within each state and the EPA then promulgates the designations after considering the state’s submission and other information. The EPA promulgated initial designations for the 2010 SO 2 NAAQS in August 2013 for areas in which monitoring at that time showed violations of the NAAQS, but has not yet issued designations for

other areas

. EPA will complete the required designations pursuant to the schedule contained in the recently entered Consent Decree. EPA will designate additional areas for the 201 0 SO 2 NAAQS in accordance with CAA section 107 and existing EPA policy and guidance. Utah may, on its own accord, decide to impose additional SO 2 emission limitations to avoid future designations of nonattainment. If additional Utah areas are designated nonattainment, Utah will then have the initial opportunity to develop additional emissions limitations needed to attain the NAAQS, and the EPA would be charged with reviewing whether the SIP is adequate to

demonstrate attainment. See Commonwealt h of Virginia, et al., v. EPA

, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner

, 57 F.3d 1122, 1123 (D

. C

. Cir.1995) (discussing that states have primary responsibility for determining an emission reductions program for its areas subject to EPA approval dependent upon whether the SIP as a whole meets applicable requirements of the CAA). However, such considerat ions are not required of Utah at the infrastructure SIP stage of NAAQS implementation, as the Commenter’s statements concern the separate designations process under section 107. 15 The

15 The EPA also notes that in the EPA’s fin al rule regarding the 2010 SO 2 NAAQS, the EPA noted that it anticipates several forthcoming national and regional rules, such as the Industrial Boilers standard under CAA section 112, are likely to require19

EPA disagrees that the infrastructure SIP must be disapproved for not inc luding enforceable emissions limitations to prevent future 1

- hour SO 2 nonattainment designations.

Comment 15

. Utah Has Failed to Even Attempt to Satisfy Its Good Neighbor Obligations Under CAA Section 110(a)(2)(D)(i).

The Commenter asserts that the EPA must disapprove Utah’s infrastructure SIP because

it does not include any information relating to the State’s “good neighbor” obligation under 110(a)(2)(D)(i)(I). The Commenter states that Utah’s SO 2 NAAQS infrastructure SIP does not

address or evaluat e cross

- state impacts due to sources within the state and contends that UDAQ incorrectly interprets the EPA’s Novemb er 2012 memo addressing the vacatur of the 2011

Cross

- State Air Pollution Rule (CSAPR) . The Commenter cites to CAA section 110 (a)(1) claiming that where i nfrastructure SIPs are due within the same timeframe as area designations, states are obligated to address transport in downwind states through their Infrastructure SIP

submissions. 16 The Commenter contends that “Utah’s reliance on a 2012 EPA memorandum in

which EPA stated that it did ‘ not intend to make findings that states failed to submit SIPs to comply with section 110(a)(2)(D)(i)(I) ’ is improper, as that guidance directly contradicts the language of the Clean Air Act.” 17 The C ommenter asserts that the Supreme Court has disapproved the claim that states cannot address section 110(a)(2)(D)(i) until the EPA resolves issues related to CSAPR and that there is no “prerequisite” action required before states fulfill section 110(a)(2)(D)(i) requirements. 18 The Commenter contends that the EPA must dis approve Utah’s infrastructure SIP because the State did not include a submittal with respect to section 110(A)(2)(D)(i)(I) and must “implement a FIP containing source

- specific emission limitations and other measures to ensure that pollution from Utah is no t preventing other states from attaining or maintaining the NAAQS.” The Commenter claims that Utah has passed the June 2013 deadline to submit provisions to meet Good Neighbor obligations and urges the EPA to take “immediate action” to disapprove the State ’s SO 2 infrastructure SIP.

Response 15 : EPA did not propose taking any final action with respect to the requirements of

section 110(a)(2)(D)(i)(I) , and is not taking any such action today. We agree with the

Commenter that Utah ’s June 2, 2013 infrastructure SIP submittal for the 2010 SO 2 NAAQS did

not address the requirements of section 110(a)(2)(D)(i)(I ). In the NPR, the EPA did not propose to take any action with respect to Utah’s obligations pursuant to section 110(a)(2)(D)(i)( I) for the June 2, 2013 infrastructure SIP submittal and is not, in this rulemaking action, taking any final

action on the 110(a)(2)(D)(i)(I) obligations. Because Utah did not include a submission in its

significant reductions in SO 2 emissions over the n ext several years. See 75 FR 35520. The EPA continues to believe similar national and regional rules will lead to SO 2 reductions that will help achieve compliance with the 2010 SO 2 NAAQS. If it appears that states with areas designated nonattainment in 2013 will nevertheless fail to attain the NAAQS as expediti ously as practicable (but no later than October 2018) during the EPA’s review of attainment SIPs required by section 172, th e CAA provides authorities and tools for the EPA to solve such failure, including, as appropriate, disapproving submitted SIPs and promulgat ing federal implementation plans. Likewise, for any areas designated nonattainment after 2013, the EPA has the same authorities and tools available to address any areas which do not timely attain the NAAQS.

16 The Commenter cites In the Matter of Public Service of New Hampshire Schiller Station , Petition No. VI

‐ 2014

‐ 04 (EAB July 24, 2014), at 10 (hereinafter “ Schiller St ation ”).

17 The Commenter cites EPA Memorandum, Next Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross

- St ate Air Pollution Rule (Nov. 19, 2012), available at https://www3.epa.gov/crossstaterule/pdfs/CSAPR_Memo_to_Regions.pdf.

18 The Commenter cites EPA v. EME Homer City Generation , 134 S.Ct. 1584, 1600 (2014) (“[T]e CAA sets a series of precise

deadlines to which the States and EPA must adhere”) and Schiller Station , at 10 ( citing Homer City , 134 S.Ct. at 1601.20

June 2, 2013 SIP submittal to address the requirements of section 110(a)(2)(D)(i)(I), the EPA is

not required to have proposed

, or actually taken, final action under CAA section 110(k)

approv ing or disapprov ing the SIP for this element. In this case, there has been no substantive

submission for th e EPA to evaluate under section 110(k). The EPA interprets its authority under

section 110(k)(3) of the CAA as affording the EPA the discretion to approve, or conditionally approve, individual elements of Utah’s infrastructure SIP submissions, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA. D iscrete infrastructure SIP requirements in section 110(a)(2), such as the requirements of 110(a)(2)(D)(i)(I), are severable from the other infrastructure ele ments

, and the EPA interprets

section 110(k)(3) as allowing the Agency to act on individual severable measures in a plan

submission. Further, because Utah’s infrastructure SIP submittal did not address the good neighbor provision, we disagree with the Comm enter’s statement that the EPA currently has a mandatory obligat ion to issue a FIP address ing section 110(a)(2)(D)(i)(I). Under section 110(c)(1), the EPA ’s authority to issue a FIP arises from limited circumstances

— either the EPA’s disapproval of a required SIP submittal or the EPA’s affirmative finding that a state has failed to make a required submittal

. Neither of these prerequisites has activated the EPA’s FIP authority with respect to Utah’s section 110(a)(2)(D)(i)(I) obl igations for the 2010 SO 2 NAAQS

. T he EPA acknowledges the Commenter’s concern for the interstate transport of air pollutants and agrees in general that sections 110(a)(1) and 110 (a)(2) of the CAA require states to submit, within three years of promulgation of a new or revised NAAQS, a plan containing adequate provisions to address inter state air pollution under s ection 110(a)(2)(D)(i)(I). However,

in this action

, consistent with the proposal, the EPA is only acting on portions of Utah’s

infrastr ucture SIP submissions for the 2010 SO 2 NAAQS. The EPA intends to address Utah’s obligations re garding interstate transport for the 2010 SO 2 NAAQS in another rulemaking.

Comments from Western Resource Advocates

Document No. EPA

- R08

- OAR

- 2013

- 0561

- 0022

Comment 16: The Utah Infrastructure SIP Does Not Meet the Requirements of 110(a)(2)(A) and 110(a)(2)(C) because Excess Emissions Are Exempted from Permit Limitations. Western Resource Advocates (the Commenter) contends that Utah has director discretion

and startup, shutdown, and malfunction (SSM) provisions in its state rules that are “contrary to Clean Air Act and existing EPA guidance.” The Commenter claims that the EPA confirmed in the proposed rule to this rulemaking that “Utah law and practice runs con trary to the [CAA]” and therefore cannot ensure emissions will not cause or contribute to a violation of the NAAQS through the State’s air permit program. Additionally, t he Commenter states that because Utah’s minor and major source PSD permits include exe mptions resulting from SSM events, Utah’s

PSD or minor source permit programs cannot ensure emissions will not cause or contribute to a violation of the NAAQS or PSD increments

. The Commenter points to SSM language in permit approval orders for the Huntington, Current Creek, and Intermountain Power Service Corp oration (IPSC) power plants and claim s that these examples indicate a “ pattern ” in which

Utah has included exemptio ns from SSM events in permits it has issued for facilities located

outside non attainment areas. The Commenter contends that Utah has not met requirements of section 110(a)(2)(C) because permits issued under the State’s minor source and PSD programs exempt emissions from permit limitations and are therefore not adequate to protect th e NAAQS.
The Commenter also asserts that “sources cannot demonstrate that their emissi ons will not21

violate the NAAQS pursuant to 110(a)(2)(A)... where their permits authorize essentially

unlimited emissions.” Finally, the Commenter contends that the EPA is also obligated to disapprove prong 3 of 110(a)(2)(D)(i)(II) because it requires states to have adequate PSD

programs

.

Response 16 : The EPA generally disagrees with this comment. As an initial matter, t he Commenter’s concerns highlight an important distinction between whether an i nfrastructure SIP submission meets the applicable requirements of the CAA on its face ( i.e., pertain to the facial sufficiency of the state’s SIP), and whether a state is actual ly complying with the requirements of that SIP ( i.e., pertain to adequacy of the state’s implementation of the SIP). 19 These comments implicate the question of the degree to which implementation concerns are relevant in the context of acting on a state’s in frastructure SIP. In the context of an infrastructure SIP submission, the EPA interprets section 110(a)(1) and (2) to require the Agency to focus on whether the state has a SIP that provides the requisite legal framework for implementation, maintenance and enforcement of the NAAQS. Generally speaking, the EPA’s review of infrastructure SIP submissions is limited to whether, pursuant to CAA section 110(a)(2), the submission facially meets the requirements of the statutory criteria outlined therein, as applic able (see also response 1). In the case of section 110(a)(2)(C), for example, the statute requires a state to have a SIP that ‘‘include[s] a program to provide for . . . regulation of the modification and construction of any stationary sources . . . includ ing a permit program as required in parts C and D of this subchapter.’’ Thus, the EPA reviews a state’s infrastructure SIP submission to assure that the structural elements of the state’s PSD permitting program meets current CAA requirements for such progr ams, e.g., that it addresses GHG emissions. This is not to say the EPA has no role in reviewing whether a state is faithfully implementing its approved SIP, or otherwise complying with the CAA and its implementing regulations. To the contrary, there are m ultiple statutory tools that the EPA can use to rectify problems with state implementation of its SIP, and the existence of these tools is consistent with the EPA’s interpretation of section 110(a)(2) with respect to the Agency’s role in reviewing

infrastr ucture SIP submissions. For example, as previously described, the CAA provides the EPA the authority to issue a SIP call, 110 (k)(5); make a finding of failure to implement, id. §§

110 (m), 179 (a)(4); and take measures to address specific permits pursuant to the EPA’s case

- by

case permitting oversight. See, e.g., § 505 (b). The appropriateness of employing these authorities depends on the nature and extent of the particular implementation problems at issue. With respect to Utah’s infrastructure SIP submission, the EPA analyzed the submission itself, and evaluated the text of its provisions for compliance with the relevant elements of section 110(a)(2). In the proposal, the EPA explicitly evaluated the State’s submission on a requirement

- by

- requirement basis and explained its views on the adequacy of the State’s SIP for purposes of meeting the infrastructure SIP requirements. With respect to the requirements related to PSD and minor NSR relevant to this approval of the infrastructure SIP submission, the EPA has determined that the State’s SIP as previously approved meets the relevant structural requirements for purposes of minor source NSR and PSD

in section s 110(a)(2)(C) and (D)(i)(II) prong 3. As to the PSD program in particular, these basic structural requirem ents include those provisions necessary for the permitting program to address all federally regulated pollutants and the proper sources. The EPA considers action on the

19 See Approval and Disapproval and Promulgation of Implementation Plans; Texas; Infrastructure and Interstate Transport Requirements of the 1997 Ozo ne and the 1997 and 2006 PM2.5 NAAQS , 76 FR 81371 (Dec. 28, 2011).22

infrastructure SIP submissions required by section 110(a)(1) and (2) to be an evaluatio n of a state’s SIP to assure that it meets the basic structural requirements for the new or revised NAAQS, not a time to address all potential substantive defects in existing SIP provisions, including directors discretion, or language pertaining to SSM exe mptions contained in PS D and minor source NSR permits. Therefore, the EPA generally considers evaluations of a state’s PSD and minor source NSR permits to be outside the scope of an infrastructure SIP review

. . With respect to section 110(a)(2)(A), a s discu ssed in our proposal (81 FR 24525, April 26, 2016), and further explained in the 2013 Guidance Memo

, 20 the EPA is not evaluating any existing SSM provisions in Utah’s SIP. Although the Commenter cites EPA’s “confirmation” in our proposed rulemaking that existing SSM provisions in the Utah SIP, that sentence of the proposed rulemaking was a scrivener’s error, as evidenced in part by the fact that it cited a SIP

call that did not implicate any provisions of Utah law . The EPA is not aware of any existing

def iciencies in the Utah SIP regarding excess emissions during SSM events at this time

. However, t he EPA has previously addressed SSM provisions in the Utah SIP outside of the

infrastructure SIP process, with more appropriate tools Congress provided to addres s such problems

. Specifically , under the authority of CAA section 110 (k)(5), the EPA issued a SIP call on April 18, 2011 requiring Utah to revise SSM SIP provisions dating back to 1980 ( See "Finding of Substantial Inadequacy of Implementation Plan; Call fo r Utah State Implementation Plan Revision," 76 FR 21639). On February 6, 2014, the EPA finalized approval of the State’s

revisions to Utah rule R307

- 107

, which corrected deficiencies related to the treatment of excess emissions during malfunction events, a nd therefore satisfied the EPA's April 18, 2011 SIP call (79 FR 7067). As relevant to this action, however, the Commenter has failed to identify a provision in Utah’s SIP that grants SSM exemptions in permits and the EPA is unaware of any such provision, and we conclude that Utah’s PSD program meets all requirements under Section 110(a)(2)(C)

. Additionally, to the extent that the Commenter points to specific permits as exempting excess emissions, if this is the case, t he EPA agrees that the state should not give such exemptions in permits. T he EPA also finds that existing SSM provisions in permits should be addressed through the permitting review process rather than the SIP rulemaking process because it is an implement ation issue that is outside the scope of EPA’s review of this infrastructure SIP

. With regard to director’s discretion provisions .(DD) EPA is aware that the state’s EPA

approved SIP contains some DD provisions. EPA reiterates that such existing DD provisions are most appropriately addressed outside the scope of EPA’s infrastructure review process.
However, the EPA is currently working with Utah to correct existing deficient language in its

20 See Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2) , Stephen D. Page, Director, EPA’s Office of Air Quality Planni ng and Standards, to Regional Air Division Directors Regions 1

– 10, p. 21 (Sept. 13, 2013).

In summary, the EPA in recent final actions on infrastructure SIP submissions has maintained that the CAA does not require that new infrastructure SIP submissions a ddress existing potentially inadequate provisions concerning SSM or director's discretion in order to be approved as meeting the CAA section 110(a)(1) and (2) requirements triggered by the new or revised NAAQS. The EPA’s stated position has been that it c an approve an infrastructure SIP submission, even if the infrastructure SIP may incorporate by reference previously approved SIP provisions that are or may not be consistent with the EPA’s SSM Policy and its policy on director’s discretion to revise emissi on limits. The EPA articulated this position in a number of infrastructure SIP actions taken in 2011, noting in the preambles for those actions that existing provisions for SSM and director's discretion may be dealt with separately, outside the context of acting on an air agency’s new infrastructure SIP submission. However, if an air agency submits an infrastructure SIP

submission that would create a new SIP provision related to SSM that is inconsistent with the EPA’s interpretation of the requirements of t he CAA, the EPA may disapprove it. We intend to continue this practice and affirm it as part of this guidance.23

SIP through SIP processes outside the context of the State’s infrastructure SIP

, such as through
Utah’s PM 10 maintenance plan and PM 2.5 attainment plan.

Comment 17: The Utah Infrastructure SIP Does Not Meet the Requirements of 110(a)(2)(A) and 110(a)(2)(C) Because In Many Instances, Utah Permits Do Not Regulate Condensable PM 2.5 and

PM 10

. The Commenter contends that Utah’s PSD and minor source permits do not regulate

condensable PM emissions in accordance with the CFR and

, therefore, the EPA must not “approve any aspects of the proposed infrastructure SIP relating to 2012 PM 2.5 NAAQS.” The Commenter points to language in the Hunter and MagCorp permit approval orders regarding condensable PM emissions and compliance demonstr ation. The Commenter also cites to the IPSC approval order and claims there is no limit for PM 2.5 and that compliance with the PM 10 emission limit is determined by Method 5B or other testing methods approved by the Director

. The Commenter states that thes e examples show a pattern in Utah’s permitting practices for not regulating condensable PM or requiring monitoring to determine condensable PM. The Commenter asserts that the EPA cannot approve Utah’s 2012 PM 2.5 NAAQS infrastructure SIP for section 110(a)(2 )(C) because the State’s PSD and minor source programs do not regulate or

limit condensable PM emissions nor demonstrate that emissions from a source will not cause or contribute to a violation of the NAAQS under section 110(a)(2)(A).

Response 17 : The EP A disagrees with the Commenter that the EPA must disapprove Utah’s

infrastructure SIP for the 2012 PM 2.5 NAAQS because some state PSD and minor source permits do not regulate condensable PM

. For the reasons discussed in response 16, the EPA evaluated the State’s submission with respect to the requirements related to PSD and minor NSR relevant to this approval of the infrastructure SIP submission and determined that the State’s SIP as previously approved meets the relevant structural requirements for purposes of minor source NSR and PSD in section 110(a)(2)(A), (C) and (D)(i)(II) element 3. To reiterate, the EPA generally considers evaluations of a state’s PSD and minor source NSR permits to be an implementatio n issue that is outside the scope of an infrastructure SIP review, and therefore the

EPA is not at this time evaluating language pertaining to condensable PM in state permit approval orders in this action. Finally, the EPA addressed the adequacy of Utah’s infrastructure SIP for the purposes of meeting CAA requirements for PSD and minor source programs under section 110(a)(2)( C ) in the proposed rulemaking for this action. In fact, Utah’s PSD program incorporates the requirements for condensable PM that were specified in the EPA’s 2008 PM 2.5 NSR Implementation Rule. 73 FR 28321, 28349 (May 16, 2008) (changes to federal program). The Rule was promulgated in 2008, and Utah’s PSD program incorporates by reference the federal program in 40 CFR 52.21 as of 2011, including the provision in 52.21(b)(50)(vi) addressing

condensable PM (78 FR 63883, 63887, Oct. 25, 2013) . Utah’s minor source program regulates pollutants as necessary to ensure that construction of a minor stationary source or a minor

modification will n ot interfere with the NAAQS, including the PM 10 and PM 2.5 NAAQS. Thus, should condensable PM from a minor source have the potential to interfere with these NAAQS, Utah can (and should) address the issue in the minor NSR permit.24

Comment 18: The Utah Infr astructure SIP Does Not Meet the Requirements of 110(a)(2)(F) Because In Many Instances Monitoring Frequency is Inadequate to Show Continuous Compliance with Emission Limitations. The Commenter states that “EPA’s reliance on [Utah Administrative Code] R307

- 165 is

ill

- founded and its finding of compliance with section 110(a)(2)(F) is improper.” First, t he Commenter explains that Utah’s emissions testing requirement of “at least once every five years”

under R307

- 165

- 2 is “insufficient to demonstrate that the requirement to limit emissions ‘on a continuous basis’ or to show that continuous compliance with an emission limitation has been met.” In support, the Commenter cites the definition of “emission limitation” and “emission

standard ” under Section 302(k) of the CAA as wel l as several other EPA sources 21 to conclude
that states must enforce and monitor emissions standards and limitations “on a continuous basis.” The Commenter adds that “even yearly testing is inadequate” unless a state demonstrates how yearly testing can show continuous compliance or continuous emissions monitoring , and that

the “EPA’s reliance on R307

- 165 is” thus “ill

- founded

. ”

Second , the Commenter states that “[t]he inadequacy of Utah’s monitoring provision is

further established in [Utah’ s permitting] practice.” In support, the Commenter refers to the MagCorp approval order which “routinely requires stack testing only once every five years.”

Response 18 : The EPA agrees with the Commenter’s statement that emissions limit ation s must
be complied with at all times

. However, the EPA disagrees with the Commenter’s argument that

the EPA must therefore disapprove Utah’s infrastructure SIP submission for element 110(a)(2)(F) because Utah’s emission testing requirement s under R307

- 165

- 1 only req uires a stack test at least once every five years. Although emission limits must impose continuous emission reduction requirements on the affected sources, it does not follow that sources must conduct stack tests continuously in order for emission limitati on s to be continuous s o long as the state imposes other appropriate requirements on sources sufficient to assure compliance by

sources. In the case of Utah, the requirements the state imposes are not restricted exclusively to the stack tests contemplated in R307

- 165

- 2. This is not the only mechanism the state uses to verify compliance with emission limitations in permits. In addition to t hat requirement, the state’s SIP also provides for other forms of compliance assurance such as continuous emissions monitoring. For example, R307

- 170 requires certain large sources to install and maintain continuous emission monitors on sources to prove a means to make sure that the emission limitations are legally and practically enforceable. Under the Credible Evidence Rule, any of these may be used to support enforcement actions against affected sources for violation of

emission limitations. Finally, th e EPA acknowledges the commenter’s concern with the adequacy of

monito ring requirements in practice. H owever, to the extent that the S tate has issued approval orders for specific sources that contain insufficient monitoring requirements, this is not an iss ue that the EPA is addressing in the context of evaluating infrastructure SIP submissions. As explained elsewhere in this response to comments

, the EPA has other tools to address problems with permits that have been issued under an approved program.

21 Clean Air Act National Stack Testing Guidance , at 14 (April 27, 2009); Definition of ‘Continuous Compliance’ and Enforcement of O&M Violations (June 24, 1982); Credible Evidence Rulemaking , 62 FR 8314, 8323 (Feb. 24, 1997).25

Comment 19: EPA Errs When it Cites SIP Section XVI as Meeting the General Requirements of

Section 127.

The Commenter states that the EPA’s reliance on Section XVI as meeting the requirements of section 127 is improper. First, the Commenter states that “se ction XVI is completely out of date, having been adopted in 1992” and that the phone number that section XVI lists no longer works. Second, the Commenter states that “calculation of API [Air Pollution Index] is not adequate to let the public know the condi tion of the air or compliance with the NAAQS.” Finally, the Commenter states that “[r]eliance on section XVI’s description of the Annual Report is also ill

- conceived.” The Commenter explains that an Annual Report that provides “only once a year ‘a descript ion of the regulatory, SIP, and public hearing process and an indication of the ways the public may participate in these processes in an effort to improve air quality’ does not meet section 127 mandates.”

Response 19 : The EPA disagrees with the Commenter’ s argument that the Utah SIP does not

meet the requirements of section 127. Among other requirements, section 110(a)(2)(J) of the CAA requires states to meet the public notification requirement under section 127. Section 127 requires a state's infrastructu re SIP to contain measures to notify the public upon the exceedance of a NAAQS, to advise the public of the health hazards related to such exceedances, and to enhance public awareness of measures that can prevent such exceedances and means for which the pu blic can participate in efforts to improve air quality. CAA 127; see also 40 CFR 51.285. Section 127 further states that "[s]uch measures may include the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information." As long as the infrastructure SIP me ets section 127 requirements, it is largely irrelevant when Utah adopted Section XVI. The measures that the State uses to notify the public may vary over time. Utah has a phone line which members of the public may call in to

, and also

maintains a website th at enables Utahans to learn about air quality issues, view a current air quality index, review annual reports submitted to the EPA, and access air quality alerts for ozone

and PM 2.5

. 22 The site contains sections to enhance public awareness of measures to ta ke to prevent exceedance for the NAAQS. The EPA agrees with the Commenter, however, that the measures that the SIP identifies to notify the public to meet section 127 requirements should be

current , including the phone number listed in Utah’s Section XVI ( if it no longer functions as the Commenter alleges ), 23 as well as adding th e State’s air quality monitoring website

. However, given the other methods that the State uses to meet the requirements of section 127, we do not regard this deficiency to indicate t hat the SIP as a whole fails to meet those requirements. Second, we disagree with the Commenter’s contention that the API inadequately informs the public of the condition or compliance status of NAAQS , and note that the Commenter does not provide support for its statement. Section XVI of Utah’s SIP requires UDAQ to calculate an API on a daily basis. In measuring and reporting its daily API , states are to follow criteria as
established in Part 58’s Amb ient Air Quality Surveillance. Pursuant to Section XVI of its SIP, Utah posts API information on a daily basis. Furthermore, we disagree with the Commenter’s statement that a once a year Annual Report that provides the public a description of the public’s potential involvement in improving air quality fails to satisfy section 127 requirements

. EPA again notes that the Commenter has failed to provide support for its statement. Neither section

22 Available at http://air.utah.gov/

. 23 According to Utah DEQ’s air monitoring website at http://air. utah.gov/ , the phone forecast number appears to be

801

- 536

- 0072 or toll

- free 1

- 800

- 228

- 5434.26

127 nor any regulations requires the state to provide such informa tion at a greater frequency beyond an annual one.